England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
ADMINISTRATIVE COURT - QUEEN'S BENCH DIVISION
(MR CMG OCKELTON sitting as a Deputy High Court Judge)

		Royal Courts of Justice Strand London, WC2A 2LL
		17 November 2015

LORD JUSTICE SALES:

1. This is a renewed oral application for permission to appeal in relation to a claim that the appellant was wrongfully detained by the Secretary of State for immigration purposes.
2. The two grounds put forward are first, that the detention was of a person who suffered from mental illness and could not properly be detained in accordance with paragraph 55.10 of the Secretary of State's Enforcement Instructions and Guidance. Those instructions and guidance state that certain categories of persons are considered to be liable to detention only in very exceptional circumstances, and lists amongst those covered by that policy, "Those suffering from serious medical conditions which cannot be satisfactory managed within detention". The second ground is that it is said that the judge abdicated his proper function in applying the guidance in Hardial Singh to assess whether the detention was for a reasonable period in all the circumstances, by simply looking to see whether the Secretary of State could form the view that detention should continue. I address these in turn.
3. As far as the first is concerned, an issue arises whether the Secretary of State addressed the position of the appellant on the footing that his medical condition could be satisfactorily managed within detention. In my view, there is no arguable error of law on the part of the judge as far as this is concerned. On the material available before the court (see pages 119 to 120 of the bundle) the internal view was taken within the Secretary of State's department that the appellant was not someone with a serious mental illness as defined within paragraph 55.10. That is to say, although the appellant had a mental illness, it was one which was manageable within detention. It seems to me that the judge was clearly right to assess the position on that footing, which he duly did.
4. The question then is whether there is an arguable case for appeal, that the judge improperly formed the conclusion that the Secretary of State was entitled to reach that view in light of a second expert report from a Dr Taylor, which indicated concern in relation to the position of the appellant and his mental illness whilst in detention. The judge carefully analysed Dr Taylor's report at paragraph 73 of his judgment and at paragraph 77 he referred to a range of other evidence which was supportive of the position adopted by the Secretary of State and her officials. As the judge pointed out, the claimant's behaviour caused him to be frequently looked at by health professionals; none of them suggested that his detention was aggravating a mental illness or that he had a mental illness of such seriousness that it could not be adequately managed in detention. The Secretary of State was entitled to note that the responsible clinicians who saw the claimant so frequently did not raise these issues. Further, the second report of Dr Taylor was not, in fact, in unqualified terms that the condition of the appellant could not be properly managed within detention. His conclusions were put in somewhat qualified terms, for instance, at conclusion 7, page 266, "In my opinion, further prison detention is potentially likely to have a detrimental effect on his mental health".
5. In my view, Christopher Clarke LJ was correct in dismissing this ground of appeal as he did on the papers saying this,

"The judge was entitled to find that the SOS could reasonably conclude that A's serious medical condition could be satisfactorily managed, i.e. treated in a manner 'generally … regarded as acceptable medical practice for dealing with [his] condition appropriately' - R(O) v SSHD [2014] EWCA Civ 990 at [46]. Dr Taylor's report did not in terms say that it could not (although that was one of the questions asked of him), nor is that conclusion apparently mandated by it. The necessary medication was available and the responsible health professionals, on whom the SOS was entitled to rely, were not indicating that his condition could not satisfactorily be managed."

6. Accordingly, I do not consider that there is a real prospect of success on appeal on this ground, nor is there any other compelling reason in relation to this ground to grant permission to appeal.
7. The second ground of appeal urged on me is that the judge did not properly apply the approach in Hardial Singh by assessing for himself whether the continued detention of the appellant was reasonable or not. In particular, Mr Buley for the appellant refers to what the judge said about risk of absconding at paragraph 36. He also refers me to, in particular, paragraph 81.
8. On this ground of appeal, likewise, I do not consider that there is a real prospect of success. Reading the judgment as a whole, it is clear, to my mind, that the judge applied a conventional Hardial Singh approach in his assessment of the position. The judge reviewed for himself the materials in relation to criminality and risk for further offences, while also reviewing the reasonableness of the Secretary of State's position in relation to that. In my judgment, at paragraphs 34 to 37, likewise, he reviewed the matters relating to risk of absconding for himself as well as referring to the reasonableness of the Secretary of State's own view. See, for instance, the first sentence of paragraph 36, where the judge gives his own assessment in relation to factors put forward in argument by the Secretary of State: "None of these factors is of wholly inconsiderable weight".
9. Again, I agree with the ruling of Christopher Clarke LJ on the papers in relation to this ground as follows,

"The judge was also entitled to find that the detention in question was not unreasonable in extent. He plainly realised that the judgment was for him and not for the SOS [6]. His decision involved the consideration and evaluation of a number of different factors on the impact of which different judges might take different views. The appeal court will rarely interfere with a conclusion at first instance unless it is 'inconsistent with ... findings of primary fact, or … based on an incorrect understanding of the law or … one which was not sensibly open to him on those facts': Muqtaar [2012] EWCA Civ 1270. It does not seem to me that there is a realistic prospect of persuading the full court that this case is in that category."

10. I agree. Again, in my view, there is no other compelling reason why permission to appeal should be granted in relation to this ground. For these reasons I dismiss this application.

Order: Application dismissed.